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Thursday, 16 April 2015

Ambassador ret. Yoram Ettinger: Non-omnipotent US presidency

The assertion that US foreign policy and national security are shaped by presidential omnipotence is refuted by recent precedents and the US Constitution. The latter was created by the Founding Fathers, who were determined to limit the power of government and preclude the possibility of executive dictatorship. They were apprehensive of potential presidential excesses and encroachment, and therefore assigned the formulation of domestic and foreign policy and national security policy to bothCongress and the president. Obviously,the coalescing of congressional policy among 535 legislators constitutes a severe disadvantage for the legislature.

According to the Congressional Quarterly, the US Constitution rectified the mistakes of its predecessor, the Articles of Confederation, upgrading the role of Congress to the primary branch of the US government. "Hence, the first article of the Constitution is dedicated to Congress. The powers, structure, and procedures of the national legislature are outlined in considerable detail in the Constitution, unlike those of the presidency and the judiciary…."

Unlike all other Western democracies – where the executive branch of government dominates the legislature, especially in the area of international relations and defense - the US Constitution laid the foundation for the world's most powerful legislature, and for an inherent power struggle over the making of foreign policy between the legislature and the executive, two independent, co-equal and co-determining branches of government. Moreover, while the president is the commander-in-chief, presidential clout depends largely on congressional authorization and appropriation in a system of separation of powers and checks and balances, especially in the areas of sanctions, foreign aid, military assistance, trade agreements, treaty ratification, appointment confirmation and all spending.

Congressional power has been dramatically bolstered since the Vietnam War, Watergate, Iran Gate and globalization, which have enhanced the involvement of most legislators in international issues, upgraded the oversight capabilities of Congress, dramatically elevated the quality and quantity of some 15,000(!) Capitol Hill staffers and have restrained the presidency.

However, Congress has often abdicated its constitutional power in the area of foreign policy, failing to fully leverage the power of the purse: funding, defunding and "fencing." Thus, legislatorsprefer to be preoccupied with domestic issues, which are the primary concerns of their constituents and, therefore, decide their re-electability. Therefore, they usually allow the president to take the lead in the initiation and implementation of foreign and national security policies, unless the president abuses their trust, outrageously usurping power, violating the law, assuming an overly imperial posture, pursuing strikingly failed policies, or dramatically departing from national consensus. Then, Congress reveals impressive muscle as befits a legislature, which is the most authentic reflection of the American people, unrestrained by design, deriving its power from the constituent and not from party leadership or the president, true to the notion that "the president proposes, but Congress disposes."

*Since 1982 and 1999, the Senate hasrepeatedly refused to ratify the Convention on the Law of the Sea and the Comprehensive Test Ban Treaty.

*The January 2013 defense authorization bill tightened restrictions on the transfer of terrorists from Guantanamo to the US. In May 2009, Majority Leader Harry Reid foiled President Obama's attempt to close down the detention camp.

*In 1990, President Bush failed in his attempt to cut Israel's foreign aid by 5% due to Congressional opposition.

*In January, 1975, the Jackson-Vanik Amendment was signed into law, in defiance of the president.

*Congress endedUS military involvement in Vietnam (the 1973 Eagleton, Cooper and Church amendments), Angola (the 1976 Clark Amendment) and Nicaragua (the 1982-1984 Boland Amendments).

In 1991, Senator Daniel Inouye, who was the chairman of the Intelligence Committee and surged to the chairmanship of the full Appropriations Committee, fended off Administration pressure to withdraw an amendment to upgrade the port of Haifa facilities for the Sixth Fleet: "According to the US Constitution, the legislature supervises the executive, not vice versa….”

Will Congress follow in Senator Inouye's footsteps, or will it abdicate its constitutional responsibilities?